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2009 DIGILAW 687 (JHR)

Bishwanath Agarwal v. Shri Ram Sonkar

2009-05-04

D.G.R.PATNAIK

body2009
Order Heard Mr. PK Prasad, learned counsel for the petitioner and Mr. MK Dey, learned counsel for the Respondents. 2. With the consent of the learned counsel for the parties, this case is taken up for disposal at the stage of admission. 3. Challenge in this writ application under Article 227 of the Constitution of India, is to the order dated 12.6.2008, passed by the Special Judge-I, Chaibasa in Eviction Suit No. 1 of 2007, whereby the petitioner's application under Section 15 of the J.B.R.C. Act, 1982, has been rejected. Besides praying for quashing of the impugned order, the petitioner has also prayed for a direction upon the Respondent to deposit the rent as claimed by the petitioner in his petition dated 14.12.2007, under Section 15 of the Act. 4. Facts of the case in brief are that the petitioner/plaintiff had filed the Eviction Suit No. 1 of 2007 before the court below against the respondent/defendant on the ground of default and personal necessity claiming himself to be the landlord of the suit properties. 5. In the averments in his plaint, the petitioner has claimed himself to be the owner .of the suit properties and has also claimed that he had let out the suit premises to the defendant on a monthly rental of Rs. 2,200/- on an ordinary month to month Agreement of tenancy. The plaintiff had issued the rent receipts to the defendant, most of which used to be countersigned by the defendant's son. The defendant had paid the rent lastly upto the month of September, 2003 and thereafter, had stopped payment of rent continuously till the filing of the suit. On the ground of default in payment of rent and also on the ground of personal necessity, the suit for eviction was filed by the petitioner against the respondent-defendant. 6. The defendant had paid the rent lastly upto the month of September, 2003 and thereafter, had stopped payment of rent continuously till the filing of the suit. On the ground of default in payment of rent and also on the ground of personal necessity, the suit for eviction was filed by the petitioner against the respondent-defendant. 6. In his written statements the respondent-defendant has offered contest to the claim of the plaintiff by denying the relationship of tenant and landlord between him and the plaintiff and advancing a counter claim that the suit premises had originally belonged to one Surendra Kumar Gupta, who had executed an Agreement of sale in favour of the father of the defendant on 29.10.1952 in lieu of a loan of Rs, 40,000/-, which the said owner had taken from the defendant's father and had put the defendant in possession of the suit premises with the condition that if he failed to return the loan amount, then he would transfer the house in favour of the defendant, but later, the said owner had left the town without repaying the loan and subsequently had died. Having thus, come into possession of the suit premises, the defendants had continuously remained in occupation of the house and has regularly been paying the house taxes and the electricity charges. 7. During the pendency of the suit, the plaintiff filed his application dated 14.12.2007 under Section 15 of the J.B.R.C. Act, 1982 for a direction upon the respondents to deposit the monthly rent @ Rs. 2,200/- per month. The defendant had contested the prayer under Section 15 of the Act raising the same grounds as advanced in his written statement, denying the relationship of landlord and tenant between him and the plaintiff. 8. The learned court below vide its impugned order after hearing the parties had rejected the plaintiffs prayer with the following observations:- "I am of the view that both the plaintiff and defendant claimed their right over the suit property and the defendant denied the relationship of landlord and tenant, so, under such circumstances, without deciding the issue of relationship of landlord and tenant in between the parties, it is not desirable to direct the defendant to deposit the rent or pay the rent to the plaintiff, as claimed by the plaintiff, by exercise of its power under Section 15 of the J.B.R.C. Act." 9. Assailing the impugned order, Mr. P.K. Prasad, learned counsel for the petitioner would submit that as laid down by the judgment of the Division Bench of this Court in the case of Jaganath Prasad vs. Santosh Prasad Sahu, (2007) 1 J.C.R. 206 (Jhr.), it is well-settled that in a suit for eviction where the defendant denies the relationship of landlord and tenant and a petition is filed by the plaintiff under Section 15 of the Act, it is incumbent upon the Court to tentatively examine the material then available on record and determine as to whether such denial of relationship of landlord and tenant is bona fide or a mere pretence. The court is required to make a summary investigation and record a prima facie finding regarding the existence of relationship of landlord and tenant before directing the defendant to deposit the rent. Learned counsel explains that the plaintiff had brought on record the following materials:- (i) The Registered Sale-deed, dated 5.4.1945, executed by the original owner of the suit properties, whereby the original owner had transferred the suit property in favour of the plaintiffs' father. (ii) The order dated 3.11.1945, passed by the competent authorities in the Mutation proceedings, whereby the properties stood mutated in the name of the plaintiff's father. (iii) Counter-foils of the rent receipts, issued by the plaintiff to the defendants against receipt of monthly rents, countersigned by the defendant's son. Learned counsel argues that the above materials were sufficient enough to affirm prima facie, that the plaintiff is the owner/landlord of the suit property and that the defendant was a tenant under the plaintiff on a monthly rent of Rs. 2,200/-, which fact finds acknowledged by the counterfoils of the rent receipts, counter-signed by the defendant's son. Learned counsel adds further that as against the aforesaid materials placed by the plaintiff, the defendants had produced an unregistered document, purported to be an agreement of sale executed by one Surendra Kumar Gupta, sometime in the year 1952 although no such agreement could have been legally executed by any person in view of the fact that the plaintiff had perfected his right, title and interest over the suit property ever since the date of its purchase by a Registered instrument in the year 1945. The learned court below therefore ought to have observed that no reliance could be placed on such unregistered document, which in itself, does not create any right or title over the suit properties in favour of the defendants. Learned counsel adds further, that the learned court below has erred in brushing aside the rent receipts filed by the plaintiff bearing the countersignatures of the defendant's own son. 10. Per contra, Mr. MK Dey, learned counsel for the respondent would support the impugned order of the court below by submitting that in view of the fact that the defendant has. categorically denied the relationship of landlord and tenant between", the plaintiff and the defendant and in view of the fact that the plaintiff has not specified the date of commencement of the alleged tenancy, the learned court below has rightly considered that without first deciding the issue of landlord and tenant, no order under Section 15 of the Act for directing the defendant to deposit the rent, can be passed. 11. The provisions under Section 15 of the J.B.R.C. Act, has been elaborately explained by the Division Bench of this Court in the case of Jaganath Prasad (supra) and while explaining, the Court has recorded its following observations:- " It is well-settled that in case where the defendant denies the relationship, the Court has to examine the material then available and come to a conclusion whether such denial or a dispute as to title of defendant denies the relationship, the Court has to examine the material then available and come to a conclusion whether such denial or a dispute as to title of the plaintiff is bona fide or a mere pretence and if the Court finds that there is no prima facie merit in the said denial, then the defendant can be called upon to make deposit of rent." 12. In the light of the ratio decided in the above judgment, in the case of Jaganath Prasad (supra), it was incumbent upon the trial court to examine the materials available on record and come to a conclusion whether the dispute as to title of the plaintiff as raised by the defendant, is bona fide or a mere pretence. In the light of the ratio decided in the above judgment, in the case of Jaganath Prasad (supra), it was incumbent upon the trial court to examine the materials available on record and come to a conclusion whether the dispute as to title of the plaintiff as raised by the defendant, is bona fide or a mere pretence. In other words on an application under Section 15 of the Act, the trial court is expected to make a summary investigation on the basis of the materials available on record, and to record a prima facie finding on the issues relating to relationship of landlord and tenant and the rent payable, if any, by the defendant. Even if these questions had to be decided finally in the suit, the jurisdiction of the court in passing an order under Section 15 of the Act was not ousted and the court had to pass the necessary order on the petition filed by the landlord under Section 15 of the Act. As apparent from the impugned order, the learned court below does not appear to have considered the issues raised in proper perspective in order to record a prima facie finding on the relevant issues. 13. For the reasons stated above, I find merit in this application accordingly, the same is allowed. The impugned order as passed by the court below, dated 12.6.2008, passed in Eviction Suit No. 1 of 2007 (Annexure-6), is hereby set aside. The matter is remitted back to the court below to take a fresh decision on the petition filed by the plaintiff under Section 15 of the Act in accordance with the principles laid down in the case of the Jaganath Prasad .(supra). 14. It is .informed by the learned counsel for the respondent that the evidence of the plaintiff is almost complete but the proceedings are being delayed only on account of non-appearance of the plaintiff for his cross-examination by the defendant. The order passed on this writ application shall not prevent the learned trial court in proceeding with the trial of the case expeditiously and to conclude the same without further delay.' The plaintiff/petitioner shall extend due cooperation to enable expeditious disposal of the suit.